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pursuant to standards, procedures, and protocols established by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA).” 803 KR 25:280(1)(5)


Kentucky’s law specifically refers to


urine as the appropriate testing specimen for drugs. Te addition of oral fluid to SAMHSA’s mandatory guidelines, in theory, would permit employers in Kentucky to utilize lab-based oral fluid while complying with the voluntary law. However, this may require legislative action or, at the very least, completion of OFMG’s implementation period. Perhaps in anticipation of the OFMG,


Tennessee’s voluntary workers’ comp discount law includes a direct reference to lab-based oral fluid testing. Under the voluntary law, which offers a 5% premium discount, employers are required to follow SAMHSA’s mandatory guidelines, meaning that employers in the state are impacted by the OFMG. Tennessee’s law states:


“If an employee is unable to provide a urine specimen when requested, the United States Department of Health and Human Services mandatory guidelines on fluid administration and for alternative oral specimen collection shall be followed.” Tenn. Comp. Rules & Reg. 0800-02-12-.06(4)


Sounds simple, right? Just keep straight


which states do not allow lab-based oral fluid testing and the 17 states that defer to the federal guidelines, and you’re home free. Not so fast. Even in some states that do not defer to SAMHSA’s guidelines, employers are well-advised to do the following: • Carefully review all applicable state drug testing laws, mandatory and voluntary. Tere may be statutory language in a state law that requires adherence to a host of detailed requirements. According to a 2019 amendment to the Oklahoma law, for example, the use of “saliva” or oral fluid is permited but only in the context of confirmation testing. Of course, the


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OFMG permit oral fluid for both initial screens and confirmation testing.


• When it comes to state drug testing laws, read the fine print. Te Maine law specifically permits oral fluid drug testing but references it in connection with POCT/screening tests, permiting “federally recognized substance use tests”. Otherwise, the law utilizes the term “bodily fluids” but does specifically mention cut-off levels for oral fluid. Additionally, all drug-free workplace policies must be approved in advance of drug testing by the state’s department of labor. Here, following the OFMG requirements for collections, lab analysis, and MRO verifications may win over the DOL.


• An oral fluid testing program should be at least as stringent as the OFMG. In fact, some state laws, Montana being a good example, use similar language except with reference to 49 CFR Part 40. Remember, Part 40 has become, in many people’s minds, the preferred way to conduct lab-based urine testing. Te OFMG are likely to follow that same path to widespread acceptance and adoption outside of federally mandated programs. Tis may be especially advisable in states like North and South Dakota, for example, that do not have workplace drug testing laws.


• Don’t forget to check the case law in your state. In some states, case law shapes how workplace drug testing is conducted. Tis may or may not impact the decision to utilize lab-based oral fluid drug testing, but it may; therefore, it is always wise to check. California is a good example of a state with case law that strongly affects who can be tested, how and under what circumstances. (Note: While it is true the state of California does not have a law, two municipalities do have ordinances that function as laws—San Francisco and Berkley.)


Conclusion Many questions will be answered in the coming months relative to state drug testing laws and the OFMG. One question we can answer now that is likely to have a


significant impact on how states ultimately treat the OFMG, “Why did SAMHSA formulate guidelines for lab-based oral fluid drug testing?” SAMHSA answered that question


with the original NPRM and in the final OFMG. Among the reasons were saving time, improving productivity, reducing expense, and adding flexibility to the overall drug testing process. For example, oral fluid samples can be collected anytime, anywhere; oral fluid can be implemented in place of or in combination with urine testing; oral fluid testing is ideal for testing circumstances that require a shorter window of detection (e.g., in marijuana-friendly states, for post-accident and reasonable suspicion situations, when collection of a urine specimen is impractical or cost-prohibitive, etc.) All of these reasons, as well as


SAMHSA’s endorsement of the science behind lab-based oral fluid testing will likely influence state policy makers who will consider the OFMG’s application in their respective states. ❚


Reference 1


The Department of Health and Human Services (2019, October 25) Mandatory Guidelines for Federal Workplace Drug Testing Programs—Oral/Fluid. Retrieved November 5, 2019 from https://www.federalregister.gov/ documents/2019/10/25/2019-22684/mandatory-guidelines- for-federal-workplace-drug-testing-programs-oralfluid.


Bill Current is the President and Founding Partner of the Current Consulting Group (CCG). Mr. Current is a 29-year veteran in the drug testing industry. He is the


former Director of the Institute for a Drug- Free Workplace, Executive Director of the American Council for Drug Education, and Vice President of Consulting for Employee Information Services. Mr. Current is the author of 10 books on substance abuse-related issues and a regular presenter at conferences, seminars, workshops, and webinars. Mr. Current is widely considered one of the leading experts on drug testing and the drug testing industry. He founded the industry’s most comprehensive database subscription service at CurrentCompliance.org and helps conduct the annual Drug Testing Industry Survey.


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